Andrea Oates gives us an overview of recent and forthcoming legal changes affecting health and safety at work.
 

Harassment

On 26 October, the Worker Protection (Amendment of Equality Act 2010) Act 2023 (Worker Protection Act) came into effect, introducing a “preventative duty” on employers to take proactive steps to prevent sexual harassment in their workplaces. As the Equality and Human Rights Commission (EHRC) explains, employers must take reasonable steps to prevent sexual harassment of their workers, including by third parties. Acas, the advice, conciliation and arbitration service, makes clear that employers must not wait until something has happened before they take action.

The new law covers harassment from colleagues, whether at work or in settings connected to work, and harassment from third parties including customers, service users or members of the public.

Updated EHRC technical guidance explains that reasonable steps employers should take include: developing and widely communicating a robust anti-harassment policy, which includes third party sexual harassment; undertaking regular risk assessments to identify where sexual harassment may occur and the steps that will be taken to prevent it; being proactively aware of what is happening in the workplace and any warning signs, by engaging with staff through 1-2-1s, surveys and exit interviews; and monitoring and evaluating the effectiveness of actions.

The new Act includes provision for compensation in sexual harassment claims to be increased. If an employment tribunal finds a worker has been sexually harassed, it must consider whether the preventative duty has been met. If it hasn’t, the employer can be ordered to pay an additional 25% (maximum) compensation.

It also gives the EHRC power to take enforcement action where there is evidence of organisations failing to take reasonable steps to prevent sexual harassment. This does not depend on an incident of sexual harassment having taken place.

The Worker Protection Act came about as a result of a Private Member’s Bill put forward by the Liberal Democrat MP Wera Hobhouse during the previous Conservative administration. However, it was watered down as it made its way through Parliament.

Employment rights

The new Labour government’s Employment Rights Bill, published in October 2024, will reinstate several of the original Bill’s provisions, further strengthening the law in this area. It will require employers to take “all” reasonable steps to prevent sexual harassment. It will provide explicit protection for those who blow the whistle on sexual harassment, and it will include protection from all forms of harassment by third parties related to a relevant protected characteristic under the Equality Act 2024. These are age, disability, gender reassignment, race, religion or belief, and sexual orientation, as well as sex. (Harassment related to marriage and civil partnership or pregnancy and maternity is not covered, but harassment because of these protected characteristics is likely to give rise to a claim of harassment on the grounds of sex or sexual orientation.)

The Bill also contains the power to make regulations requiring employers with 250 or more employees to develop and publish an equality action plan showing the steps they are taking with regard to gender equality, including supporting employees going through the menopause.

However, although the general election manifesto document, Labour’s Plan to Make Work Pay - Delivering A New Deal for Working People contained several references to improving health and safety protections (see our feature published earlier this year How does Labour say it would make work safer if it wins the election?), these are not included in the Employment Rights Bill itself. And the new Fair Work Agency it establishes, which will bring together various existing employment rights enforcement agencies, does not include the Health and Safety Executive (HSE) and health and safety regulation or the EHRC and the enforcement of equalities law.

Wider reforms

Alongside the Bill, the Government published a Next Steps to Make Work Pay policy paper explaining its plans for delivering wider reforms – measures sitting outside of the Employment Rights Bill. This sets out, for example, that it will take forward the “right to switch off” through a statutory Code of Practice. Subject to consultation, this will prevent employees from being contacted out of hours, except in exceptional circumstances, to allow them the rest and recuperation they need. 

The policy paper also lists “longer-term delivery of reforms (autumn 2024 and onwards)” that the Government will take forward “in due course”.

These include strengthening protections for the self-employed through a right to a written contract, extending blacklisting protections and extending health and safety protections. It will consult on how to implement these measures in a consultation on single “worker” status – a simpler framework differentiating between workers and the genuinely self-employed.

There will also be a review of health and safety guidance and regulations, with a view to its modernisation. This will look at neurodiversity awareness in the workplace, how to modernise health and safety guidance with reference to extreme temperatures, and whether existing regulations and guidance are adequate to support and protect those experiencing the symptoms of Long COVID. The Government says it will ensure health and safety “reflects the diversity of the workforce”.

REUL changes

There has also been a recent change in relation to the previous Conservative government’s Retained EU Law (Revocation and Reform) Act 2023 (REUL Act). This made significant changes to what was previously known as “retained law”, renaming it “assimilated law”, and ending the special status of retained European Union (EU) law within the UK legal system. It also gave ministers powers to revoke, amend or replace retained or assimilated EU law more easily. Section 6 of the Act, which was due to have been brought into force on 1 October 2024, would have further changed the way courts could depart from assimilated case law. However, the commencement Regulations were revoked and so did not take effect.

Fire safety

There could also be further changes to fire safety law as a result of the recommendations of the public inquiry into the Grenfell Tower fire. In September, the inquiry published its long-awaited final report recommending “new burdens and responsibilities on people and organisations”.

Its recommendations include a new construction regulator to oversee all aspects of the construction industry, introducing mandatory fire safety strategies for higher-risk buildings, regulating and bringing in mandatory accreditation of fire risk assessors, and setting up a licensing scheme for contractors wanting to construct or refurbish higher-risk buildings.  The Government promised to respond in full to the inquiry’s recommendations within six months and update Parliament annually on progress against its commitments.
 
 

Andrea Oates is a freelance writer who writes on current affairs from a trade union perspective and specialises in health and safety at work and work-based learning and training.